Megha Infrastructure Projects Pvt.Ltd., Surat V. The Income tax Officer,Ward-1(3), Surat

ITA 1957/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5713 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-05-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 27-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JYOTI LAXMI
• Assessee Lawyers: RASESH SHAH
• Keywords: Condonation of delay

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AT SURAT CAMP BEFORE S/SHRI T.K.SHARMA, JM AND D.C.AGRAWAL, AM MEGHA INFRASTRUCTURE PROJECT P. LTD., 63-66, MAHENDRA PARK SOCIETY, PUNA KUMBHARIA ROAD, SURAT. VS. INCOME-TAX OFFICER, WARD 1(3), SURAT. (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI RASESH SHAH, AR REVENUE BY:- SMT. JYOTI LAXMI, SR.DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUNDS :- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) HAS ERRED IN DISMISSING THE APPEAL AS TIM E BARRED. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS E RRED IN REJECTING BOOKS OF ACCOUNTS U/S, 145(3) OF HE ACT. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS E RRED IN DISALLOWING RS, 1,54,985/- BEING 5% OUT OF LABOUR E XPENSES AMOUNTING TO RS. 30,99,700/-. 4. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS TAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS E RRED IN ESTIMATING THE NET PROFIT AT THE RATE OF 1% ON SUB- CONTRACT ITA NO.1957/AHD/2008 ASST. YEAR :2004-05 2 RECEIPT OF RS. 85,97,558/- AND THEREBY ERRED IN MAK ING ADDITION OF RS. 85.976/- FOR ALLEGED LOW NET PROFIT 5. IT IS THEREFORE PRAYED THAT CIT(A) MAY PLEASE BE DIRECTED TO ADMIT THE APPEAL CONDONING THE DELAY OR THE ADDITIO N MADE BY ASSESSING OFFICER MAY PLEASE BE DELETED. 2. IT WAS SUBMITTED BY THE LD. AR THAT GROUND NO.1 GOES TO THE ROOT OF THE MATTER. THE LD. CIT(A) DID NOT ADMIT THE APPEAL ON THE GROUND THAT APPEAL IS LATE BY 2 MONTHS. APPEAL SHOULD HAVE BE EN FILED BY 25.11.2006 BEFORE HIM WHICH HAD BEEN FILED ON 7.2.2 007. IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT ASSESSEE HAD D ISPUTE WITH HIS COUNSEL WHO WAS LOOKING AFTER ASSESSMENT WORK AND HE WANTED TO ENGAGE ANOTHER COUNSEL FOR FILING THE APPEAL BUT LD. CIT(A) REJECT ED THIS GROUND AND DID NOT CONDONE THE DELAY AND IN THE RESULT DISMISSED T HE APPEAL. 3. BEFORE US IT WAS SUBMITTED BY LD. AR THAT AS SOO N AS ASSESSEE WAS ABLE TO OBTAIN THE FILE FROM THE EARLIER COUNSEL AN D ENGAGE NEW COUNSEL, APPEAL WAS FILED. THESE REASONS ARE BONA FIDE AND, THEREFORE, LD. CIT(A) SHOULD HAVE ADMITTED THE APPEAL AND DECIDE THE ISSU E ON MERIT. THE LD. AR RELIED ON THE DECISION OF HON. SUPREME COURT IN COLLECTOR LAND ACQUISITION VS. MST KATIJI & ORS. 167 ITR 471, FOR THE PROPOSITION THAT SUFFICIENT CAUSE FOR THE PURPOSES OF CONDONATION OF DELAY SHOULD BE INTERPRETED WITH A VIEW TO DO EVEN-HANDED JUSTICE O N MERITS. THIS DECISION WAS APPLIED BY HON. GUJARAT HIGH COURT IN THE CASE OF DINESH NAGINDAS SHAH VS. CIT 273 ITR 229 (GUJ). 4. THE LD. DR ON THE OTHER HAND, RELIED ON THE ORDE RS OF AUTHORITIES BELOW. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT DELAY SHOULD HAVE BEEN CONDONED. IF CERTAIN SUBMISS IONS ARE MADE BY THE 3 ASSESSEE IN RESPECT OF EXPLAINING THE REASONS FOR D ELAY IN FILING THE APPEAL THEN PROBABILITY OF EVENTS NARRATED BY THE ASSESSEE SHOULD BE CONSIDERED AND IF THERE IS A PROBABILITY OF HAPPENING OF SUCH EVENTS, THEY SHOULD BE ACCEPTED AS CREATING SUFFICIENT REASONS UNLESS AUTH ORITIES CONCERNED DECIDE TO PROBE FURTHER INTO THE MATTER AND CALL FO R SUBMISSIONS OF EVIDENCE IN SUPPORT OF REASONS SUBMITTED BY THE ASS ESSEE. IF NO FURTHER PROBING IS DONE BY THE AUTHORITIES AND THERE IS A F AIR PROBABILITY THAT EVENTS WHICH LEAD TO DELAY IN FILING APPEAL COULD H AVE BEEN HAPPENED THEN IT SHOULD BE ACCEPTED THAT SUCH EVENTS HAVE TA KEN PLACE AND TREATING THOSE REASONS AND EVENTS AS SUFFICIENT CAUSE DELAY SHOULD BE CONDONED. OTHERWISE RIGHT COURSE IS TO PROBE THE MATTER FURTH ER AND SHOW THAT REASONS ADVANCED BY THE ASSESSEE ARE NOT TRUE AND H E HAS TAKEN RECOURSE TO FALSE PREMISE FOR PLEADING THE CONDONATION OF DE LAY. SINCE IN THE PRESENT CASE LD. CIT(A) HAS NOT RESORTED TO ANY PRO BING INTO THE REASONS ADVANCED BY THE ASSESSEE IT WOULD BE APPROPRIATE TH AT THEY SHOULD BE TREATED AS SUFFICIENT AND DELAY SHOULD BE CONDONED. ACCORDINGLY WE CONDONE THE DELAY AND RESTORE THE MATTER TO THE FIL E OF LD. CIT(A) FOR DECIDING THE ISSUES RAISED BY THE ASSESSEE ON MERIT S. THUS THE APPEAL FILED BY THE ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURP OSES. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED BUT FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 02/07/2010 SD/- SD/- (T.K. SHARMA) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED : 02/07/2010 4 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD